On Recognising Aboriginal and Torres Strait Islander Peoples in the [Australian] Constitution - a Belated Homage Or Yet Another Swindle ? by George Venturini *
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On Recognising Aboriginal and Torres Strait Islander Peoples in the [Australian] Constitution - a belated homage or yet another swindle ? by George Venturini * 11 June, 2012 Countercurrents.org “There are two issues that will manifest our maturity: first, proper constitutional recognition of the first people; second, independence from the regal pantomime in England.” Peter Gebhardt, 1936 - , poet and former County Court Judge in Melbourne The learned Judge got it right, but not in the correct sequence. To do anything seriously about respecting the Indigenous Peoples of what is now Australia, the country must become a republic. And there is the rub. The Judge was writing on the occasion of Australia Day [2011], “that artificial and trumped-up celebration, the excuse for manufactured emotion, [which] should force us to look closely at our history and the truths of that history vis-à-vis the Aboriginal population and the brutal facts of that history.” And, for good measure, he went on: “... a history we have refused to acknowledge, to understand and to negotiate, all to our historical detriment. Succeeding hordes of imprinters do not know and do not want to know. The triumphalism of Australia Day is tainted by the tragedy of ignorance and imposed ignominy.” On 8 November 2010 Prime Minister Julia Gillard announced the establishment of an Expert Panel to consult on the best possible options for a constitutional amendment on recognition of Aboriginal and Torres Strait Islander Peoples to be put to a referendum. The Prime Minister stated: “The first peoples of our nation have a unique and special place in our nation. We have a once-in-50-year opportunity for our country.” 2 The Panel’s terms of reference provided for it to report to the Government on possible options for constitutional change, including advice as to the level of support from Indigenous Peoples and the broader community for each option, by December 2011. In November 2007 Prime Minister John Howard, in one last opportunistic electoral manoeuvre, had announced his support for recognition of Aboriginal and Torres Strait Islander Peoples in a new preamble to the Constitution. On 24 November 2007 Howard’s Liberal [conservative] Party lost the election which brought to office the Kevin Rudd/Julia Gillard Labor government, formed on 3 December. On 23 July 2008 the Commonwealth Government conducted a community Cabinet meeting in eastern Arnhem Land. Prime Minister Rudd was presented with a Statement of Intent on behalf of Yolngu and Bininj clans living in Yirrkala, Gunyangara, Gapuwiyak, Maningrida, Galiwin’ku, Milingimbi, Ramingining and Laynhapuy homelands - approximately 8,000 Aboriginal people in Arnhem Land. The ensuing communiqué argued that the right to maintain culture and identity and to protect land and sea estates were preconditions for economic and community development in remote communities. The communiqué called on the Government “to work towards constitutional recognition of our prior ownership and rights.” Receiving the communiqué, the Prime Minister pledged his support for recognition of Indigenous Peoples in the Constitution. On 24 June 2010 Ms. Gillard toppled Rudd from the prime ministership. On 21 August 2010 new elections followed, for which the Australian Labor Party formulated a policy proposing that “constitutional recognition of Aboriginal and Torres Strait Islander peoples would be an important step in strengthening the relationship between indigenous and non-indigenous Australians, and building trust.” A Gillard Labor Government would establish an Expert Panel on Indigenous Constitutional Recognition comprising Indigenous leaders, representatives from across the federal Parliament, constitutional law experts and members of the broader Australian community. The Opposition, too, had a ‘Plan for real action for Indigenous Australians’. The plan was very similar to that of the Government and provided that the Coalition [of the Liberal and National parties] would encourage public discussion and debate about the proposed change, and seek bipartisan support for a referendum to be put to the Australian people at the 2013 election. The Australian Labor Party was re-elected, albeit without a majority. Ms. Gillard was confirmed as Prime Minister of a minority government. In September 2010 agreements were reached by the Gillard minority government with the Australian Greens and three Independent members to hold a referendum “during the [life of the current] 3 Parliament or at the next election on Indigenous constitutional recognition and recognition of local government in the Constitution.” On 23 December 2010 the Prime Minister announced the membership of the Expert Panel on Constitutional Recognition of Indigenous Australians. The Panel comprised persons from Indigenous and non-Indigenous communities and organisations, small and large business, community leaders, academics, and members of Parliament from across the political spectrum. Membership was drawn from all States and Territories, cities and country areas. The members of the Panel would serve in an independent capacity. Throughout 2011 the Panel was supported by an executive officer, a media adviser and the Indigenous Constitutional Recognition Secretariat in the Department of Families, Housing, Community Services and Indigenous Affairs. The Panel met throughout 2011: in Canberra in February, October and November, Melbourne in March, July and December, and in Sydney in May and September; it also conducted much of its work out of session. The process required: • the building of a general community consensus; • the central involvement of Indigenous and non-Indigenous people; and • the collaboration with Parliamentarians from across the political spectrum. The Expert Panel was to report by December 2011. In performing its role, the Panel was to: • lead a broad national consultation and community engagement programme to seek the views of a wide spectrum of the community, including from those who live in rural and regional areas; • work closely with organisations, such as the Australian Human Rights Commission, the National Congress of Australia’s First Peoples and Reconciliation Australia who have existing expertise and engagement in relation to the issue; and • raise awareness about the importance of Indigenous constitutional recognition including by identifying and supporting ambassadors who will generate broad public awareness and discussion. The Panel was to have regard to: 4 • key issues raised by the community in relation to Indigenous constitutional recognition; • the form of constitutional change and approach to a referendum likely to obtain widespread support; • the implications of any proposed changes to the Constitution; and • advice from constitutional law experts. At its second meeting in Melbourne in March 2011 the Panel agreed on four principles to guide its assessment of proposals for constitutional recognition of Aboriginal and Torres Strait Islander Peoples, namely that each proposal was to: • contribute to a more unified and reconciled nation; • be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander Peoples; • be capable of being supported by an overwhelming majority of Australians from across the political and social spectra; and • be technically and legally sound. In its consideration of options for constitutional recognition, the Panel was strictly guided by these four principles. The Panel worked closely with organisations such as the National Congress of Australia’s First Peoples, Reconciliation Australia and the Australian Human Rights Commission. Congress undertook a number of surveys of its members in relation to recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution. Reconciliation Australia undertook activities to complement the work of the Panel. These included contributing content to the Panel’s website, appointing ambassadors and facilitating public meetings. In May 2011 the Panel published and had distributed a discussion paper, A National Conversation about Aboriginal and Torres Strait Islander Constitutional Recognition. The discussion paper identified seven ideas intended to provide a starting point for conversation with the public envisaged by the Panel, but in no way to limit the scope of proposals which might have been raised through the consultation and submissions process. The Panel set up an interactive website providing an online presence, involved social media including Twitter, Facebook, YouTube, Flickr, Tumblr and a blog feed, and published all submissions on the website unless confidentiality had been requested. The Panel engaged a media adviser to develop a media strategy to inform the public as widely as possible. The strategy included arranging features and opinion pieces, television and radio talkback programmes, and speeches at various events. 5 Between May and October 2011 the Panel conducted a broad national consultation programme, which included public meetings, individual discussions, presentations at festivals and other events, the website, and a formal public submissions process. State and local office contacts of the Department of Families, Housing, Community Services and Indigenous Affairs, and other contacts developed lists for each consultation. In developing such lists the Panel concentrated on Aboriginal and Torres Strait Islander leaders, business leaders, community leaders, leaders of organisations with Reconciliation Action Plans, and faith-based leaders. The consultation schedule